Hogan v. Mills

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

April 6, 2005 Session

RICKEY HOGAN v. DAVID G. MILLS, WARDEN, ET AL.

Appeal by Permission from the Court of Criminal Appeals

Circuit Court for Lauderdale County

No. 5806 Joe H. Walker, III, Judge

No. W2004-00182-SC-R11-HC - Filed June 27, 2005

We granted this appeal to determine whether habeas corpus relief is available when: (1) the trial

court imposed concurrent sentences for two offenses committed by the petitioner while on parole;

and (2) the trial court failed to order these new sentences to be served consecutively to the remaining

sentence for the paroled offense. We conclude that the sentences are not illegal under either claim

and that the petitioner is not entitled to habeas corpus relief. Accordingly, we reverse the judgment

of the Court of Criminal Appeals and reinstate the trial court’s judgment dismissing the petition for

writ of habeas corpus.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals

Reversed; Judgment of the Trial Court Reinstated

JANICE M. HOLDER, J., delivered the opinion of the court, in which FRANK F. DROWOTA , III, C.J.,

and E. RILEY ANDERSON, ADOLPHO A. BIRCH, JR., and WILLIAM M. BARKER, JJ., joined.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Kathy

Denise Aslinger, Assistant Attorney General, for the appellant, State of Tennessee.

Joe H. Byrd, Jr., Jackson, Tennessee, for the appellee, Rickey Hogan.

OPINION

In 1981, the petitioner, Rickey Hogan, pleaded guilty to robbery and received a five-to-ten-

year sentence. In 1985, Hogan pleaded guilty to second degree murder and robbery with a deadly

weapon. He received concurrent forty-year sentences for the 1985 convictions.

In 2003, Hogan filed a pro se petition for writ of habeas corpus. Although Hogan states in

the petition that his concurrent sentences are illegal, the factual basis for the claim is not clear. The

petition may be read to allege that the 1985 sentences are illegal because they run concurrently with

each other or because they run concurrently with the 1981 sentence. Hogan attached various

documents to his petition supporting his assertion that he was on parole for his 1981 conviction when

he committed the offenses resulting in his 1985 convictions. These documents indicate that after the

1985 convictions the Board of Paroles declined to impose the balance of the sentence for the 1981

conviction.

The trial court summarily dismissed Hogan’s petition. Hogan appealed the dismissal. The

Court of Criminal Appeals held that concurrent sentences for his 1985 convictions would directly

contravene Tennessee Rule of Criminal Procedure 32(c)(3) and, therefore, would be illegal if Hogan

was on parole when he committed these offenses. The intermediate appellate court reversed the trial

court’s judgment and remanded the case to determine whether the records of Hogan’s 1985

convictions contain satisfactory proof that Hogan was on parole when he committed these offenses.

We granted the State’s application for permission to appeal.

ANALYSIS

Whether habeas corpus relief should be granted is a question of law. Benson v. State, 153

S.W.3d 27, 31 (Tenn. 2004). Therefore, our review is de novo with no presumption of correctness

given to the lower court’s judgment.

The grounds upon which habeas corpus relief is available are narrow. Hickman v. State, 153

S.W.3d 16, 20 (Tenn. 2004). A petitioner is entitled to habeas corpus relief only if the petition

establishes that the challenged judgment is void, rather than merely voidable. Id.; Taylor v. State,

995 S.W.2d 78, 83 (Tenn. 1999). A judgment is void “only when it appears on the face of the

judgment or the record of the proceedings upon which the judgment is rendered that a convicting

court was without jurisdiction or authority to sentence a defendant, or that a defendant’s sentence

of imprisonment or other restraint has expired.” State v. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000)

(citations omitted). A void or illegal sentence is one whose imposition directly contravenes a statute.

Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000). A voidable conviction or sentence is valid

on its face and requires evidence beyond the face of the record or judgment to demonstrate its

invalidity. Taylor, 995 S.W.2d at 83 (citations omitted). A trial court may dismiss a habeas corpus

petition without a hearing if the petition fails to establish that the challenged judgment is void. Tenn.

Code Ann. § 29-21-109 (2000); Hickman, 153 S.W.3d at 20.

Tennessee Rule of Criminal Procedure 32(c)(3) lists the instances in which consecutive

sentences are mandatory. Rule 32(c)(3) provides:

Where a defendant is convicted of multiple offenses from one trial or where the

defendant has additional sentences not yet fully served as the result of the convictions

in the same or other court and the law requires consecutive sentences, the sentence

shall be consecutive whether the judgment explicitly so orders or not. This rule shall

apply:

(A) To a sentence for a felony committed while on parole for a felony;

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(B) To a sentence for escape or for a felony committed while on escape;

(C) To a sentence for a felony where the defendant was released on bail and the

defendant is convicted of both offenses; and

(D) Any other ground provided by law.

Rule 32(c)(3) mandates consecutive sentences when: (1) a defendant is convicted of multiple

offenses from one trial or has additional sentences not yet fully served resulting from prior

convictions; and (2) the law requires that the new offense(s) be served consecutively to the prior

offense(s). Subparts (A) through (D) list the circumstances under which “the law requires

consecutive sentences.”

Rule 32(c)(3)(A) requires that the sentence imposed for the offense committed while on

parole run consecutively to the sentence for the felony for which the offender was on parole. The

Court of Criminal Appeals, however, held that this rule also requires that all sentences imposed for

felonies committed while the offender was on parole run consecutively to one another. The State

asserts that the Court of Criminal Appeals reached a decision contrary to the plain language of Rule

32 and prior authority because this Rule requires only that a defendant who commits multiple

offenses while on parole for a felony serve the sentences for the new offenses consecutively to the

prior sentence.

We agree with the State that Rule 32(c)(3) creates no new circumstances in which

consecutive sentencing must be imposed. Subparts (A) through (D) simply reiterate those instances

in which consecutive sentencing is mandated by statute. Subpart (A) is the equivalent of Tennessee

Code Annotated section 40-28-123(a) (2003), which provides in pertinent part:

Any prisoner who is convicted in this state of a felony, committed while on parole

from a state prison, jail or workhouse, shall serve the remainder of the sentence under

which the prisoner was paroled, or such part of that sentence, as the board may

determine before the prisoner commences serving the sentence received for the

felony committed while on parole.

Both Tennessee Code Annotated section 40-28-123(a) and Rule 32(c)(3)(A) require that sentences

for felonies committed while on parole be served consecutively to the sentence remaining for the

paroled offense.

The remaining provisions of Rule 32(c)(3) also follow statutory provisions mandating

consecutive sentencing. Subpart (B) tracks Tennessee Code Annotated section 39-16-605(c) (2003),

which requires that a sentence resulting from a conviction for escape from a penal institution “be

served consecutively to the sentence being served or sentence received for the charge for which the

person was being held at the time of the escape.” Subpart (C) mirrors section 40-20-111(b) (2003),

which requires that a defendant convicted of both a felony committed while released on bail and the

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offense from which the defendant was on bail when he committed the felony serve his sentences

consecutively. Subpart (D) is a catch-all provision for statutes mandating consecutive sentences that

are not enumerated in subparts (A) through (C).

Rule 32(c)(3)(A) does not require Hogan’s 1985 sentences to be served consecutively to each

other, and we are aware of no other basis for requiring consecutive sentences for these offenses.

Accordingly, concurrent forty-year sentences for Hogan’s 1985 convictions are not illegal, and

Hogan is not entitled to habeas corpus relief on this ground.

Furthermore, Hogan is not entitled to relief on the ground that the judgments for the 1985

convictions do not explicitly provide that the sentences are to be served consecutively to the sentence

for the 1981 conviction. Rule 32(c)(3) mandates that new sentences run consecutively to the prior

sentence “whether the judgment explicitly so orders or not.” Thus, the new sentences run

consecutively to the prior sentence even if the judgment is silent in this regard.

The present case is distinguishable from McLaney v. Bell, 59 S.W.3d 90 (Tenn. 2001). As

part of a plea agreement, McLaney received concurrent sentences for convictions for rape,

aggravated rape, and burglary. In a petition for writ of habeas corpus, McLaney asserted that he had

been charged with rape and released on bail when he committed the subsequent rape and burglary

offenses. The Court held that, if the facts were as alleged, the trial court imposed a sentence in direct

contravention of Tennessee Rule of Criminal Procedure 32(c)(3)(C) because the judgments explicitly

ordered concurrent sentences for all of the offenses. McLaney, 59 S.W.3d at 93. If, as McLaney

alleged, he was on bail when he committed the new offenses, then the judgments were void because

the illegality of the sentence was evident from the face of the judgments. Id. at 94. The Court

remanded the case to the trial court for a determination of whether McLaney was on bail when he

committed the offenses at issue. Id. at 95.

In the present case, however, the judgments for Hogan’s 1985 convictions are silent as to

whether the sentences are to be served concurrently or consecutively to his prior sentence.

Moreover, the judgments themselves do not refer to Hogan’s prior conviction or his parole status.

The record before this Court does not indicate that the trial court was even aware of Hogan’s parole

status in sentencing him for the 1985 convictions. Hogan has failed to establish that the trial court

imposed sentences concurrent with Hogan’s prior felony sentence in contravention of Rule

32(c)(3)(A).1 Accordingly, because no illegality of the sentence is evident on the face of the

judgments for Hogan’s 1985 convictions, the judgments are at most voidable and not void.

CONCLUSION

We conclude that neither the trial court’s imposition of concurrent sentences for Hogan’s

1985 convictions nor the trial court’s failure to explicitly order these sentences to run consecutively

1

Any challenge to the Board of Paroles’ calculation of Hogan’s effective sente nce must be presented in an

administrative proceeding, not a habeas corp us action. See Norton v. Everhart, 895 S.W.2d 317, 321 -22 (Tenn. 199 5).

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to the sentence for Hogan’s 1981 conviction renders the sentences illegal. Thus, Hogan is not

entitled to habeas corpus relief. Accordingly, we reverse the judgment of the Court of Criminal

Appeals and reinstate the trial court’s judgment dismissing the petition for writ of habeas corpus.

Because the record indicates that the petitioner, Rickey Hogan, is indigent, costs of this

appeal are taxed to the State of Tennessee.

______________________________

JANICE M. HOLDER, JUSTICE

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